Order

Reportable

1. None present for the respondents, despite service.

2. The instant Civil Execution First Appeal under Section 96 read with Order XXI Rule 103 and 98 and Section 151 of the CPC giving challenge to the order dated 05.10.2023 passed by the learned Additional District Judge, Gangapur (Bhilwara) in Civil Execution Case No.3/2023 (Pooja Vs. Mahendra singh & Ors.), whereby the learned Executing Court rejected the application under Section 151 of the CPC preferred on behalf of the appellant as well as the execution petition.

3. Heard learned counsel for the appellant and gone through the order under challenge and the other material as made available to this court.

4. Bereft of unnecessary details, brief facts giving rise to the instant execution first appeal would be that the appellant had filed a suit for partition of the suit property. During the course of the said proceedings, on 17.08.2022, the parties entered into a compromise. As per the terms of the compromise, the parties agreed to give shop No.3 on ground floor to the plaintiff towards her share. The defendants also agreed and consented to provide assistance to the plaintiff to obtain a separate patta of shop No.3 of the suit property in her name and the same shall be registered. The defendants had also agreed that wherever their signatures would be needed, they would remain present willingly to append their signatures. Looking to the predicament of the plaintiff, perhaps it was agreed that instead of executing a sale deed, the defendants would execute a gift deed and the same shall be get registered and probably it was done just to accommodate her so that she may get separate ownership of the property. The learned trial court, based upon the compromise and amicable settlement, decreed the suit in favour of the plaintiff-appellant. She was given full liberty in respect of the shop No.3 of the ground floor of the suit property, which includes getting the property registered in her name or to obtain patta from the municipality, in which the defendants shall not object.

5. After the judgment and decree, though there was proclamation regarding ownership of the shop No.3 to the plaintiff-appellant, but in fact neither she was given possession of the property nor the documents of properietary right and title were executed. It is in this scenario, she moved an Execution Petition bearing No.3/2023 before the trial court. The learned Civil Judge after hearing the counsel for the parties passed the order dated 10.07.2023 for delivering the possession of the shop in question to the appellant decree holder as well as directed the defendants to execute a written document in favour of the plaintiff-appellant. In pursuance of the said order, on 25.07.2023, the actual possession of the shop No.3 was given to the decree holder, however, no document was executed in her favour, in absence of which, she abstained from making agreement of any kind with any person with regard to the shop to sell it, to enter in to any kind of contract to take loan or to get finance. In such circumstances, the appellant moved an application under Section 151 of the CPC praying that the judgement debtors be directed to execute a gift deed in her name with regard to the shop No.3 so that she may obtain separate title or patta from the municipality or UIT concerned. It was her assertion that doing the above would be must because the entire property remains in the name of the judgment debtors and she could not get title over the shop No.3, which is the part of the entire property and unless a separate title document is prepared in her favour, she could not enjoy rights of it. The learned trial court dismissed the application holding that it was a decree based on compromise and for which possession has been handed over to her and the judgment debtors are not creating any hindrance in use and occupation so also that the judgment debtors are not objecting for obtaining a patta from the Nagar Palika in favour